An Oregon federal jury reached a verdict in a Telephone Consumer Protection Act (“TCPA”) class action in April that exposes the defendant to a potential judgment in excess of $2.7 billion.
The TCPA makes unlawful certain telecommunications including telemarketing calls without consent to cell phones and residential land lines using an artificial or prerecorded voice and telemarketing calls without consent to cell phones using an automatic dialing system, among others. It creates a private right of action in which plaintiffs may recover actual damages or $500 for each violation, whichever is greater. A court may enhance the damages amount up to three times for any violation it finds to be willful or knowing.
In Wakefield v. ViSalus, Inc., Plaintiff Lori Wakefield filed a class action complaint in the U.S. District Court for the District of Oregon (3:15-cv-1857-SI), alleging ViSalus, Inc. (“ViSalus”), a multilevel marketing company, engaged in unlawful telemarketing by promoting its products and services through telephone calls using an artificial or prerecorded voice. After a three day trial, the jury concluded that ViSalus made 1,850,440 calls in violation of the TCPA, for which Ms. Wakefield requests statutory damages of $500 per call plus an enhancement of at least 20 percent. Although ViSalus opposes Ms. Wakefield’s request on a number of grounds, including that it would violate due process, ViSalus now faces a possible judgment of more than $925 million in statutory damages, and more than $2.7 billion if trebled. The issue has not yet been decided.
ViSalus also filed a motion to decertify the class. In its motion, ViSalus argues class treatment is not appropriate for a number reasons. Among other arguments, ViSalus contends that Ms. Wakefield failed to present common evidence at trial that absent class members were called in common ways that are unlawful under the TCPA. ViSalus emphasizes that the jury was unable to determine whether the calls it concluded were improper were made to mobile phones or residential land lines. As a result, ViSalus argued, individualized inquiries would be needed to determine whether those absent class members were called on a mobile or land line and, if called on a land line whether the land line qualified as a “residential” phone line for purposes of the TCPA. As support, ViSalus pointed to individualized evidence Ms. Wakefield presented at trial to demonstrate that her land line qualified as “residential” phone line. ViSalus’ motion has not yet been decided, either.
While significant issues remain in the case, the jury’s verdict will no doubt embolden TCPA plaintiffs in settlement negotiations and encourage them to take similar cases to trial. It also reinforces the continued importance of TCPA compliance in light of the potential exposure the law creates.